Minorities, indigenous peoples and
everyone in-between
A case study of the Nubians in Kenya
(Constantine, n.d.).
“There is no other place we consider home than Kibera. But now, the unfortunate thing is that everybody who has anything to do with Kibera looks at it as one huge slum, and the history of the original community tends to get lost in the process.” (Constantine, n.d.).
Djulianti van de Ven (s1478583) Master Thesis
Political Science: Nationalism, Ethnic Conflict and Development 11-06-2019
Supervisor: Dr. M. Longo Second Reader: Dr. F. de Zwart Wordcount: 9794
Abstract ... 2
Introduction ... 3
Group rights and categorization ... 4
Case Study: Nubians ... 11
Nubians in Kenya ... 15
International Declarations on Indigeneity and Minorities ... 19
Cases before the African Commission on Human and Peoples’ Rights ... 22
Conclusion ... 27
Bibliography ... 29
Abstract
This study looks into the consequences of international and regional categorization of groups. There is a discussion within academics that the categories of indigeneity and minority are problematic, this has resulted in vague categories within international and regional organizations. The rights groups can get are based upon these categories, as often indigenous group get group rights, but minorities only get individual rights. However, reality is not black and white; groups are hard to categorize and there are groups in-between the category of indigenous or minority. One of these groups is the Nubians in Kenya, they are in need of land rights, but are not considered an indigenous group. This study aims at finding out how international and regional organizations categorize groups and what the impact of categorization is on the rights for groups like the Nubians in Kenya.
Introduction
There has been an effort within the UN to protect minorities and indigenous peoples, the result: two declarations. One for minorities and one for indigenous peoples (United Nations General Assembly, 1992; United Nations General Assembly, 2007). There is, however, a debate between scholars if these categories are useful. However, due to the increased attention for indigenous groups, their quest for rights has become a bit easier. Internationally they are supported, and they seem to benefit from this. Furthermore, indigenous groups can claim more rights than minorities can (Aukerman, 2000, pp. 1013-1020). Especially, when looking at the UN declarations for indigenous groups and minorities, indigenous groups are entitled to all kinds of group rights, while minorities only have individual rights (Zips-Mairitsch, Kuppe, Zips & Stevens, 2013, p. 41).
In the African and Asian context indigeneity is often contested due to colonial and post-colonial developments (Venkateswar & Hughes, 2013, pp. 3-4). This context seems to create categories that are in-between indigenous and minority. They are in need for more rights than minorities are entitled to, but they cannot qualify as indigenous. A group that can be considered as in-between the categories, are the Nubians in Kenya. They are not indigenous but seem to have a connection to a specific piece of land (Kibera). The African Commission on Human and Peoples’ Rights (ACHPR) looked into the cases of the Endorois (considered as indigenous) and the Nubians (not considered indigenous), these cases show that different types of groups can have the same land right needs. It can help to find out if categorization of groups matter, as Endorois are indigenous to Kenya, while Nubians are not (African Commission on Human and Peoples’ Rights, 2009; African Commission on Human and Peoples’ Rights, 2015).
One of the important factors often raised when defining indigenous peoples, is a longstanding connection to land (Kymlicka, 1995), and looking into the Nubian case, I wondered how many years it takes to have a “longstanding connection”. As minorities often do
minority. It is hard to determine what kinds of rights these in-between groups should get. Especially, when the rights for indigenous peoples and minorities are based on vague and not fully defined categories.
As the categorization of groups can be vague, this provides a dilemma. For in-between groups, a vague category can be easier to fit into, providing them with the rights they need. On the other hand, vague categorization is problematic: states could have problems defining which rights belong to which group. This could result in groups getting no rights at all, even when they are clearly indigenous. For this reason, scholars with a focus on indigeneity fight for clearer categorization and rights (Zips-Mairitsch, Kuppe, Zips & Stevens, 2013). This paper will try to find out what rights in-between groups have and what the influence of categorization is on the rights in-between groups can claim. While vague categorization might be beneficial for the Nubians in Kenya, it will be interesting to see if they have benefitted from this and have access to land. First, international categorization and the influence of categorization on groups will be assessed. Secondly, the history and living conditions of the Nubians in Kenya will be explained to show why the Nubians can help to answer the research question. Thirdly, different human rights instruments will be examined to show how groups are categorized and what kinds of rights follow from this categorization. Lastly, two cases from the ACHPR will be compared to see if categorization has an influence on the rights groups can get.
Group rights and categorization
The way groups of people are categorized within international organizations can have an impact on how these groups are treated. This section will look into the difference between indigenous groups and minority groups. It will consist of four sections: the importance of groups rights, the academic debate, the international context and the African context. Categorization determines if a group gets individual cultural rights or group cultural rights. The UN
declarations were created to protect human rights, but the UN declaration for minorities only consists of individual (cultural) rights (Zips-Mairitsch, Kuppe, Zips & Stevens, 2013, p.41).
Cultural rights are a form of human rights and can be either individual or group rights. Group rights are contested, some believe they are essential to reach collective goals, others believe individual cultural rights are enough. Cultural rights are needed to preserve distinct cultures, for example, to ensure a language will not go extinct (Oomen & Tempelman, 1999). There are different reasons why scholars are in favor of cultural rights. This is mostly based on the believe that culture has an inherent or emotional value for people. The difference between group rights and individual rights is to whom it applies. Individual rights have a collective aspect to them, to be part of a certain culture grants a person some individual rights. The rights only apply to the person in particular. While having a common culture as a group, grants groups certain rights which they can profit from as a collective. A good example is land rights: no individual has the right to claim the land, the land belongs to the whole group. This means individuals can live on the land, but the group decides what to do with the land (Oomen & Tempelman, 1999).
Scholars like Kymlicka (1995) and Taylor (1994) believe group rights are necessary in a liberal society. Kymlicka (1995) uses a strict categorization of minorities and indigenous peoples to explain what kind of rights groups are entitled to. Kymlicka (1995) describes three justifications for group: equality, historical agreement and diversity. The equality argument is based on the idea that in order to have an equal and fair society, there is a need for group rights. Individual rights cannot solve every problem facing minorities. Group-differentiated rights can create equality, through tackling the disadvantage minorities groups can have and tackling the vulnerability of minority groups created by majority decisions (Kymlicka, 1995, pp. 108-115). The equality argument is the most interesting for this paper, as it shows the importance of group
rights, however, Kymlicka (1995) argues that immigrants (minorities) are often not in need of group rights, while indigenous peoples are.
Levey (1997) states that Kymlicka’s division, is a basis for discrimination among cultural rights claims. The distinction between national minorities (indigenous peoples) and ethnic minorities can be hard to justify. Especially, when a national minority does not have a societal culture anymore, but an ethno-religious group (minority) has a societal culture and lives on a distinguished territory with institutional embodiment. In this case the national minority still should get more rights than the ethno-religious group, according to Kymlicka (Levey, 1997, pp. 216-219).
Besides Levey (1997), there are other scholars who do not agree with Kymlicka. It is often perceived that the main difference is that indigenous groups have a long history of cultural and territorial ties. A similarity between indigenous groups and minorities is an own distinct culture and this culture defines them as a group (Jampolsky & Capenter, 2015, pp. 795-796). Therefore, for both indigenous peoples and minorities, cultural rights can be essential. Although some believe the distinction between minority and indigenous groups is important, within academics, there is debate on the term of indigeneity. Especially since Adam Kuper (2003) published his critique on indigeneity.
The concept of indigeneity is merely a new term for old ideas, according to Kuper (2003). He describes how some truths about indigenous peoples are not entirely true at all. Indigenous peoples do not always live in harmony with nature. Furthermore, they sometimes are migrants themselves. States struggle how they should treat indigenous peoples, and the methods to determine indigeneity are often ambiguous. While the term indigeneity is debatable, it would be odd to grant certain rights based upon this term. Acting upon this term could have unwanted effects, like groups getting rights they do not deserve. Indigeneity is romanticized, ambiguous and based upon doubtful anthropologic notions (Kuper, 2003).
Other scholars are also critical of indigeneity and the international indigenous discourse. As indigenous peoples make claims to protect their old ‘way of life’, but they are influenced by international discourse. They use a history to get rights and dignity, but the connection is not always clear any more. Indigeneity has become identity politics (Gerharz, Uddin & Chakkarath, 2018, pp. 1-22).
There are several different aspects important in defining and differentiating indigenous peoples and minorities. Formally, the term indigenous was mostly based on indigenous peoples in the Americas and Australia. However, indigenous peoples in these continents are vastly different to indigenous peoples in Asia and Africa, therefore the definition is thorn between different forms of indigeneity around the world. Variables like connection to land and length of stay therefore differ per definition. Therefore, it is hard to find one all compassing definition (Baldwin and Morel, 2009).
Looking at the definitions of indigeneity and minority used within the UN, indigeneity does grant groups more rights than minority does. Minority rights are individual rights, while indigenous rights are individual and group rights. Individual rights cannot help groups to claim land, while group rights can (Zips-Mairitsch, Kuppe, Zips & Stevens, 2013, p. 41). This is underscribed by Aukerman (2000): the distinction between minority and indigenous group is based on the idea that these groups have different needs and therefore should have different rights. Indigenous peoples are believed to have a claim and a need for self-government, because indigenous peoples are according to themselves sovereign nations (Aukerman, 2000, pp. 1013-1020).
Furthermore, Aukerman (2000) describes the exclusivity of the definitions used by the UN although they claim they have no formal definition:
“The United Nations, although it has not formally adopted a definition of "indigenous peoples," has been guided by the working definition developed by
Special Rapporteur Martinez Cobo, definition which emphasizes "historical continuity with pre-invasion and pre-colonial societies."" The ILO's definition, which distinguishes between indigenous peoples and tribal peoples, has less stringent requirements historical continuity, and hence is more inclusive”
(Aukerman, 2000, pp. 1015-1016).
Niezen (2003) describes the most common factors in definitions on indigeneity. These factors show the exclusivity of the term indigenous peoples.
“There are nevertheless some areas of general consensus among formal attempts at definition. The most commonly recognized features of indigenous peoples are descent from original inhabitants of a region prior to the arrival of settlers who have since become the dominant population; maintenance of cultural differences, distinct from a dominant population; and political marginality resulting in poverty, limited access to services, and absence of protections against unwanted “development”” (Niezen, 2003, p. 19).
This is the general perception on indigeneity, which is not preferable for indigenous groups in Africa and Asia.
The definitions of the UN show the international (academic) debate on the definitions and how hard it is for the UN to create a solid definition. However, the difference between indigenous and minority is still made within the UN:
“Adopted by consensus in 1992, the United Nations Minorities Declaration in its article 1 refers to minorities as based on national or ethnic, cultural, religious and linguistic identity, and provides that States should protect their existence. There is no internationally agreed definition as to which groups constitute minorities. It is often stressed that the existence of a minority is a question of fact and that any definition must include both objective factors (such as the
existence of a shared ethnicity, language or religion) and subjective factors (including that individuals must identify themselves as members of a minority)”
(United Nations Human Rights Office of the High Commissioner, n.d.).
“Indigenous peoples are inheritors and practitioners of unique cultures and ways of relating to people and the environment. They have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live. Despite their cultural differences, indigenous peoples from around the world share common problems related to the protection of their rights as distinct peoples” (United Nations Permanent
Forum on Indigenous Issues, n.d.).
The problem with these definitions is the possible exclusion of groups. At the same time, they also emphasize the impossibility of a solid worldwide definition. So, they do not refrain from defining, but created a vague definition that is hard to work with. Meanwhile, delegates of indigenous groups emphasize that a clear, legal definition would probably be detrimental to thesituation of indigenous groups (Niezen, 2003, p. 18).
Although the definitions are vague and not able to encompass all types of indigeneity around the world, it has become very attractive to be part of the international indigenous movement. Since the 1990s more groups from Africa and Asia began to use international indigenous discourse, which changed the perception on indigeneity (Igoe, 2006, pp. 402-403). Furthermore, being indigenous is also seen as an identity, people are proud to be indigenous (Niezen, 2003, p. 3).
The indigenous workgroup of the UN doubted to take Africa and Asia into account, as indigeneity in these continents is so different from indigeneity in the Americas and Australia. This is due to movement of people, especially during and after colonial times, which has been
and is abundant in Africa (Venkateswar & Hughes, 2013, pp. 3-4). Furthermore, the definition of indigeneity in the African context is also different per organization, however, it seems like all the definitions include a relation to a certain territory and how this relation defines the everyday lives of indigenous peoples (Baldwin & Morel, 2009, pp. 247-249).
While there is some value in claiming to be indigenous, the doubt about indigeneity is not over. The Commission of the African Charter1 talks about their interpretation of minority
and indigenous on their website:
“ The Concept of Indigeneity in Africa
According to the 2003 report of the African Commission which was endorsed by the AU in 2005, in post-colonial Africa, the term ‘indigenous peoples’ does not
mean:
- first habitants in a country or on the continent;
- natives as understood in the Americas or Australia” (African Commission on Human and Peoples’ Rights, 2019).
Here the ACHPR breaks with common definitions and specifies the definition of indigenous peoples. Making it perhaps vaguer, but also easier for groups to fit into the category and making it better suitable to the African context.
Furthermore, the differentiation between indigenous peoples and minorities is also highlighted on the website of the African Charter:
“There may certainly be overlaps between groups identified as ‘indigenous’ and groups identified as ‘minorities’, and no definition or list of characteristics can eliminate these overlaps. (…) The usefulness of a sharp and clear-cut distinction between minorities and indigenous peoples is therefore limited, which is why it
1 The African (Banjul) Charter is the human rights instrument of the African Union (Organization of African
is important to apply a flexible approach based on a concrete analysis of the human rights issues at stake”
(African Commission on Human and Peoples’ Rights, 2019).
Interestingly, the ACHPR emphasizes that vagueness also has its perks. It all comes down to why the UN started to create rules and categories; human rights protection. While group rights are due to UN definitions not accessible for minorities, the less exclusive definition of the ACHPR and African Charter makes group rights more accessible.
The concepts of indigeneity and peoples seem to be more inclusive in the African Charter than in the UN, but they are still vague. This might be positive for in-between groups, as they might have less problems claiming group rights. So, what is the influence of categorization on the rights in-between groups can claim?
Case Study: Nubians
This section will explain why a case study of the Nubians in Kenya helps answer the question. Case studies are often used to test and develop theories in complex situations. As testing and further refining a theory will be the focus of this study, it is clear a case study fits as a means to help answer the research question (Barakso, Sabet & Schaffner, 2014, p. 188). As the answer to the research question can be found in a number of different variables, which change over time, it is best researched through a case study. As focusing on one group in one country gives the opportunity to look into all of these variables (Gerring, 2004).
In order to properly examine the problems of in-between categories, the history of the Nubians in Kenya should be taken into account. Therefore, this study will focus on a time period from about 1900 until now. As the case is complex, it will need more research on the history of the Nubians. As it is important to see what rights the Nubians need and what kind of group they are.
Furthermore, the legal struggle of the Nubians was brought to the ACHPR. The result of their investigation gives an insight into how communal land right claims are dealt with in Africa. Especially, since the Endorois had a similar case put under investigation by the Commission. The Endorois are an indigenous group, while the Nubians are not (African Commission on Human and Peoples’ Rights, 2009; African Commission on Human and Peoples’ Rights, 2015). Therefore, these cases can give an insight in the importance of categorization.
First, a quick overview of the situation of the Nubians in Kenya. The Nubians of Kenya are marginalized and unrecognized. They have lived within Kenya since the 18th century and settled in Kibera around 1900. Although they are squatters of governmental land, they have been living in Kibera ever since and have not moved. The Nubians have their origins in Egypt and Sudan and travelled to Kenya when they were part of the British Army. Since 1940 they try to claim the land they live on. Nubians are not indigenous, and they are discriminated by the Kenyan authorities (Balanton-Crimes, 2017, pp. 51-57).
Furthermore, there are several aspects of the lives of the Nubians that can be connected to the debate on indigenous and minority groups. The focus will therefore be; migration, history, territory, cultural diversity and equal treatment. These are all central elements in the diversification between minority groups and indigenous groups. These elements can show why the Nubians are an in-between category and how internationally and regionally in-between groups are dealt with. Moreover, it shows the relevance of categorization and if in-between groups are served by it. As seen in the literature review, the African context creates a difficulty with the concept of indigenous, and indigeneity has different meanings in international and regional organizations.
Migration: the Nubians were Sudanese people who fought for the British colonial army and were therefore located in Kenya. This can be indicated as involuntary migration, as they
were military slaves. The military slaves and their families lived next to military reserves and cantonments in villages, one of the most important ones in Kenya is known as Kibera (Johnson, 2009).
History: the Nubians migrated around 1900 to Kibera and have lived there ever since (Balaton-Crimes, 2016; Johnson, 2009). Their history is tumultuous. This is best shown through the land disputes and historical agreements the Nubians have faced during and after colonial times. During independence the role of the Nubians in Kenya became contested, and this in combination with a changing political landscape resulted in them being marginalized (Balaton-Crimes, 2016, pp. 159-165).
Territory: the Nubians squat government land, as originally, they were the biggest group living in Kibera, currently they are a small part of a diverse population (Balaton-Crimes, 2016, p. 163). They have been living on this same piece of land since about 1900, and in 1912 colonial authorities allowed this settlement. A common practice of colonizers is to grant military slaves a piece of land as a pension when they cannot be repatriated to their motherland, but this never happened to the Nubians (Balaton-Crimes, pp. 152-153; Johnson, 2009, p. 119). During colonial times there were several land disputes, these disputes were mixed with a discussion on native land rights. There were several attempts to claim this land, but Nubians are still seen as squatters (Balaton-Crimes, 2016; Johnson, 2009, pp. 120-121).
Cultural diversity: the Nubians are a distinct cultural group; most Nubians are Muslims and they speak their own language. However, not long after they migrated to Kenya, they were considered as detribalized. Meanwhile, the Nubians mixed with other people in Kenya and the Nubians were not considered as real Nubians anymore. They separated themselves from other people, especially natives, in Kenya. This separation was based on religion, language and the unwillingness to be seen as native. The Nubians created a new culture (Balaton-Crimes, 2016; Johnson, 2009).
Equal treatment: since independence, the Nubians have been politically marginalized. The political system in Kenya favors indigenous peoples and autochthon peoples (Balaton-Crimes, 2016, p. 150). Currently the Nubians struggle with citizenship problems, like statelessness. Children do not acquire the Kenyan nationality, but also academics face problems when renewing ID-cards. After independence the Kenyan government did not consider the Nubians as citizens and they became stateless (Adam, 2009; Fokala & Chenwi, 2014, pp. 359-362). It is clear Nubians are not seen as real citizens of Kenya and are certainly not treated like Kenyans; they do not experience equal treatment.
Nubians are considered in-between and outside formal categories, and they do not belong to the territory they live on. Furthermore, they sometimes portray themselves as detribalized natives (askaris) (Balaton-Chrimes, 2016). Due to the research on Nubians until now, I have a firm believe that they can be seen as a category between immigrants and indigenous peoples. They were immigrants but have experienced some form of historical agreements and they are not indigenous as they do not originate from Kenya. Also, they have a connection to the land they live on. However, the true question will be if their history and territorial claims are enough to claim that they are “indigenous”. For the moment, based on the research up until now, it seems Nubians are in need of more rights than minorities get, they need group rights to protect their land. Therefore, this case will help to examine the problems in-between groups face in context to land rights. As the definitions of the African Charter is different from the UN definitions, all of the definitions should be taken into account. The Nubians as an in-between category will show if the rights derived from the definitions serve them any justice. Furthermore, the role of the common perception on the difference between minorities and indigeneity can also have an impact on the rights for Nubians.
Nubians in Kenya
To further examine why Nubians are entitled to group rights, it is important to look at their history. Nubians are not indigenous to Kenya and (according to UN standards) better described as a minority. However, according to the ACHPR, they are entitled to group rights (African Commission on Human and Peoples’ Rights, 2015). While researching this topic and the supposed difference between indigenous groups and minority groups, it became clear that a connection to land is what differentiates the two. Especially, a historical connection to land. Therefore, a connection to land will be central to looking into what defines the Nubians in Kenya. Furthermore, as indigenous peoples often are categorized without migration history, the migration history of the Nubians is also relevant. In order to establish their difference from other people and groups in Kenya and how they are treated, their cultural diversity and equal treatment are essential to analyze.
Nubians are spread throughout Africa, but Kibera is the social and political center of Nubian culture (Parsons, 1997, p. 87). The Nubians forcefully migrated from Sudan to Kenya, as military slaves of the British army. They lived mostly in military camps or close to military camps (like Kibera). In 1920s and 1930s most Kenyans had to pay native taxes and fell under native tribunals. The Nubians fell under military jurisdiction and therefore did not have to pay those taxes or listen to the tribunals, they were privileged (Balaton-Crimes, 2013; Johnson, 2009). The cultural distinctness of the Nubians of Kenya is based on their language (Kinubi) and religion (Islam). They differ from other Nubians in East Africa, because their ancestors were ex-military slaves of the British Army (Balaton-Crimes, 2016, pp. 150-151).
While the British government wanted to evict the Nubians from Kibera, and they tried in the 1930s, the Nubian community had grown as a community through mixing with local people. This made people doubt the Nubian land claim. Non-Nubians believed Nubians were not entitled to the land, but Nubians felt like they were. The land right claim was only based on
displaced military slaves to get a new piece of land from the British government. However, as these promises were never formally made or documented, the British government began to make sure they limited their duty towards the Sudanese2. One of the reasons they used to justify this was intermixing and de-tribalization. According to the British government, the Nubians were not real Nubians anymore as they had children with local women. Therefore, they were not entitled to anything. In the meantime, the land remained government property (Johnson, 2009; Parsons, 1997, p. 89).
Although Sudanese ex-military slaves were highly valued and often had a better status than other Africans, they did not have the same status as Europeans or as Asians, nor were they considered native to Kenya. Therefore, it became hard to grant them land rights and they became squatters of governmental land. They were often categorized as detribalized natives, which is a broad category that contains Africans who are (unwillingly) displaced by the British and developed a new lifestyle that is different to the one before their displacement (Balaton-Crimes, 2016, pp. 154-156).
During colonial times Nubians wanted to distinguish themselves from native Kenyans. The group consisted not only of ex-military slaves from Sudan or Egypt, but also from other African countries. The first years, they fell under military jurisdiction, when this ended, their institutional situation became unclear. After independence the Nubians changed into a group who wanted to be considered as an ethnic group which is indigenous to Kenya (Parsons, 1997, pp. 88-89).
When they were discharged, the Sudanese soldiers had nowhere to go. They were foreign to Kenya and could not go back to Sudan. Therefore, military reserves were created, and these people could get the ‘detribalized’ status. Kibera became the reserve that attracted most of the Sudanese ex-military slaves. However, since the settlement of the ex-military slaves
2 The Nubians consist of Sudanese ex-military slaves, therefore both terms can be used to describe the same
there have been attempts to get them out. The government kept on trying to replace the Sudanese, but the attempts failed. The government also tried to evict illegal residents. As it was common practice to give a piece of land as a pension to ex-military slaves, the Sudanese expected they would get Kibera (Balaton-Crimes, 2016, pp. 152-153). This did not happen and disputes over the land remained. As the government tried to evict or replace the ex-military slaves, the Nubians stayed in Kibera because no real decisions were made. This indecisiveness is based in the believe that the problem would solve itself when the first generation died. All permits and rights were connected to those people and upon dead these rights could not be passed along to their children. However, the permits were sold to others, and it became more and more unclear who was a legal resident and who was illegal.
Furthermore, the community became distinct and while it did not purely consist of Sudanese, people who became part of the community often became Muslim and adopted the language of the Sudanese (Parsons, 1997). Every time the government threatened with evictions; the Sudanese would claim they should be repatriated to Sudan on government expenses. When one Sudanese man was sent to Sudan to see if repatriation was an option, he got returned to Kenya by the Sudanese government. Although this was an embarrassment for the Kenyan government, it turned out to be in its favor. The Nubians had lost a way to threaten the evictions (Parsons, 1997, pp. 115-116).
The independence of Kenya was also of great significance for the Nubians, the new rulers had no real intention of honoring the agreements made in colonial times. The Nubians started to negotiate for their rights. They were not real strangers, as they were African. They were also not indigenous, as they were not Kenyan. It left them as an in-between category (Balaton-Crimes, 2013, pp. 338-339; Parsons, 1997, pp. 35-37). During the struggle for independence, the older generation of Nubians showed their loyalty towards the British. They emphasized that they did not wanted to be categorized as indigenous natives, even if they had
to pay more tax to not be considered as such. However, after a while the relation between Nubians and Kenyans slowly began to change and the Nubians started to work towards a similar goal as the Kenyan people. Mostly, because Kenya was the only home they knew. They felt a deep connection to the land they lived on. Upon independence, the land issues of the Nubians were not solved and the status of the Nubian people within Kenyan remained unclear (Balaton-Crimes, 2016, pp. 159-162).
Around the 1990s it became clear that the in-between status has its problems, as a large portion of the Nubian population had no ID-cards and was in essence stateless. While today most Nubians have an ID-card, but some still struggle (Adam, 2009; Fokala & Chenwi, 2014, pp. 359-362). At the same time there are still land rights disputes. The Nubians do not have real access to land, they are often poor, have no access to education or employment. While the situation in Kenyan is hard on most people, Nubians feel the ethnic discrimination they face has more implications compared to other groups in Kenya. The access to (basic) rights is worsened through discrimination. Furthermore, they have a hard time to be politically represented within Kenyan politics and feel discriminated due to how people categorize them and refer to them (Balaton-Crimes, 2013, pp. 339-344).
In the past they were very particular in making sure they were not referred to as indigenous, nowadays they want to be seen as indigenous. As now they see Kibera as their indigenous homeland. They want to be able to elect their own leaders and have similar rights as indigenous groups often have in Kenya (Balaton-Crimes, 2013, pp. 344-345). Nubians have developed a cultural connection to Kibera, it is where they bury their family members and where Nubian festivities are celebrated with Nubians from other places and countries (Balaton-Crimes, 2017, pp. 55-56).
Nowadays, Nubians are still not perceived as Kenyan but as strangers. They change their status often, from indigenous to autochthony and are active users of human rights
discourse to improve their lives (Balaton-Crimes, 2016, pp. 163-164). As a Nubian told photographer Greg Constantine:
"When you are asked, 'can you name which tribe of Kenya you fall in?' You say you are a Nubian. And they say, 'which one is that one?' It manes that your tribe has been so marginalized that people don't even know who you are. That you have been pushed down to the lowest levels, that you are not even known. You are just there. People take that question to mean you are not a Kenyan"
(Constantine, n.d.).
During the Kenya Slum Upgrading Project (which began in 2001 and started in 2014 in Kibera) the connection Nubians feel to Kibera was not taken into account. They were treated as just another minority group living in Kibera. Their input was not considered, even though the Nubians have a strong connection to the land. The decisions were made without their consent. The Nubians are afraid the project will prevent them from getting land rights, moreover, it might be a way to limit Nubian land rights over Kibera all together (Balaton-Crimes, 2017; Elfversson & Höglund, 2018, p. 1761).
Considering all of the factors described above, the Nubians created a common culture consisting of a diverse selection of people. They built a connection with the land they live on, as after a few decades it became clear that repatriation was no longer an option. While the Nubians are convinced of their connection to Kenya, they are still unequally treated. They are in need of groups rights, considering their connection with Kibera.
International Declarations on Indigeneity and Minorities
Definitions for indigenous and minority groups differ internationally and regionally. This section will examine the difference between rights for indigenous peoples and minorities, which follows through the definitions created by the UN and the African Charter. As seen before, the main difference within the declarations on minority and indigenous issues is group rights versus
individual rights (Zips-Mairitsch, Kuppe, Zips & Stevens, 2013, p. 41). This difference between group rights and individual rights is key, as not all groups are eligible for group rights although they might need them. Land rights will be used to show the difference to the rights indigenous groups have in comparison to minority groups.
It is commonly believed that especially indigenous peoples have a special connection to land, land is often part of their culture. Therefore, it matters to differentiate between group and individual rights, as the land belongs to the group of people. It is vital to the existence of their culture and their way of life to have the rights to a specific piece of land (Baldwin & Morel, 2009).
As the focus of this paper is the categorization of groups in international and regional organizations, it is interesting to see how land and territory rights are described in the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and the UN Declaration on the Rights of Indigenous Peoples (United Nations General Assembly, 1992; United Nations General Assembly, 2007). First of all, the names of the declarations show a difference. For minorities the focus is persons who belong to a minority, while indigenous peoples are not referred to as individuals in the title. Furthermore, looking at the declaration on minority rights, the rights about land and territory are quite vague. Some rights talk about term like ‘their territory’, but these rights are mostly focused on preserving culture. It is not impossible to grant some land rights on the basis of this declaration, however, due to the vagueness it is not explicit that a state has to grant land rights. There are some rights that can help in a case were land rights are needed, at the same time these are all individual rights. So, it can be hard to argue on the basis of this declaration for communal land rights, because there is no basis to argue from for group rights, only the individual basis (United Nations General Assembly, 1992). Looking at the Declaration for indigenous groups, it is easier to claim group rights. Especially when looking at article one, rights for indigenous peoples can
be individually but also collectively and article 26 clearly gives a basis to claim land rights (United Nations General Assembly, 2007).3
As seen above, the ACHPR does have a different view on indigeneity than common. Furthermore, the African Charter does not contain the word indigenous or indigeneity. It tries to protect all groups, and therefore it might be easier to argue in favor of group rights through this Charter than through the UN declarations. The Charter does not specifically protect indigenous groups or minority groups and therefore it would be interesting to see if it can protect these groups at all (Organization of African Unity, 1981). However, group rights are emphasized in the Charter. There are articles on self-determination, and right to development as a group. Some articles focus on the individual, while others focus on peoples. Emphasizing both the importance of individual and group rights (Organization of African Unity, 1981).
The need for groups rights is clear when looking at land issues. The UN declaration assumes that it is clear why indigenous groups have a need for land claims, while minorities do not. This distinction is not explained. The definitions used within the African Charter seems to open up group rights for more categories than indigenous peoples, as the term indigenous is not used in the Charter, it seems more inclusive. However, it remains unclear if it is more beneficiary to portray a group as indigenous over portraying it as a minority. The value is somewhat clear when looking at UN documents and declarations. When looking at African Charter the value of being indigenous is unclear, as the term indigenous is not used within the Charter.
3 “Article 26 1. Indigenous peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned” (United Nations
Cases before the African Commission on Human and Peoples’ Rights
As the African Charter uses more inclusive language, it is interesting to see if this has a positive result for in-between groups. The case of Nubians and the case of Endorois before the African Commission on Human and Peoples’ rights can help to examine this. Both cases were brought to the ACHPR to examine the human rights violations these people experience (African Commission on Human and Peoples’ Rights, 2009; African Commission on Human and Peoples’ Rights, 2015). While I refer to the documents as cases, the correct term is communications, this is due to the body that investigates the cases, it is a commission not a court. Furthermore, the African Charter and the Commission are part of and subordinate to the African Union (formally known as the Organization of African Unity) and are created in 1981 due to human rights violations in member countries (Welch, 1992). The ACHPR has to rely on the African Union to enforce its decisions, further, the ACHPR can only act to promote and investigate human rights after local resources have been exhausted (Welch, 1992).
The ACHPR cannot make binding decisions, however, later on the ACHPR started to make recommendations to states that were in violation of human rights. However, a court was needed according to NGOs and scholars to improve the human rights situation in Africa. The Organization of African Unity started to develop a court in 1992, but the question remains how much effect this court will have. If it is able to enforce its decisions and therefore will be more effective than the Commission (Cole, 2010, pp. 23-26). The court became operable in 2006, but only nine states allow the court to accept cases from NGOs and individuals. Kenya is not one of those (African Court on Human and Peoples’ Rights, n.d.). Therefore, the cases of the Nubians and Endorois are investigated by the Commission.
The cases of the ACHPR give insight into the reason why groups or people are entitled to land rights. The most interesting articles, which are used to show what human rights were harmed within these two groups, are article 14 and 22:
“Article 14 The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. (…)
Article 22 (1) All peoples shall have the right to their economic, social, and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.” (Organization of African
Unity, 1981).
Within the two cases there are a few aspects which are important for this study and therefore the examination of the cases will focus on these aspects; categorization of groups, communal land rights, ancestral lands and the Right to Development.
The first difference between the two cases lies in the categorization of the groups. The Endorois are referred to as indigenous, while the Nubians are not. The amount of times the Endorois are referred to as indigenous, especially when the ACHPR considers the violations per article, does seem to emphasize the importance of their indigenous status (African Commission on Human and Peoples’ Rights, 2009). As they are called indigenous peoples, they are therefore recognized as peoples which give them access to group rights. The Endorois case is the first case were the ACHPR calls a group of people indigenous, and the ACHPR refers to jurisprudence from the Inter-American Court of Human Rights (IACtHR). Thereby creating a broad and inclusive concept of indigenous, in which pre-colonial history or attachment to land is not leading (Ashamu, 2011, pp. 300-305). This interpretation by the ACHPR of the concept indigeneity is previously discussed in this paper. However, it is important to stress how inclusive indigeneity is according the ACHPR.
Interestingly, in context to article 14 the violations the Endorois experience and the claims they try to make are similar to the Nubian case. However, the Nubians are not categorized as an indigenous group. Therefore, it seems as if indigeneity is not a requisite to get land rights on
a communal basis. However, a commonality between the two cases is the referral to ancestral lands. The term ancestral land is first used by the ILO in the 1920s. The term describes a relationship between a group of people and a particular piece of land (Home & Kabata, 2018, pp. 18-19). This focus on ancestral lands is significant, as it seems to create a basis for non-indigenous people to be able to claim land on a communal basis. The categorization of the group becomes less relevant, while the needs of the group are prioritized.
Furthermore, these cases also show a focus on the Right to Development (RtD, article 22 of the African Charter). The African Charter was the first human rights instrument to emphasize this right and make it into a discrete right (Home & Kabata, 2018, pp. 2-3). The RtD can change the way in which a group of people with a possible land claim is seen. The land is not used in a passive way, or only in cultural or spiritual way. It is also used in an economic way, to help groups to provide for themselves (Home & Kabata, 2018, pp. 9-10). Interestingly, RtD is not a common right used by human right institutions. Although the UN stands by the Right to Development (there is a United Nations Declaration on the Right to Development), most human right institutions have not ratified this right. Only the African and the Arab Charter. The case of the Endorois, is the first case were the African Charter decides a group of people should have the Right to Development (Kamga, 2011).
First, the violations of article 14 (the right to property) will be examined. In the case of the Endorois, is the way in which the complainants argue in favor of the right of property (article 14) connected to their indigenous status and their ancestral connection to the land. The complainant believes the Endorois have a right to property due to the ancestral connection to the land, due to their indigenous form of tenure and a collective ownership. They stress that the Endorois have had this connection and way of life over centuries. The complainant refers to other human rights cases and institutions, who have granted similar rights to indigenous peoples. Also, they stress the recognition of indigenous rights by international and domestic
courts. The words ‘as a people’ are used often, to stress the collectivity of this case. The complainant closes with a statement on how the Kenyan government failed to protect indigenous rights and follow international standards on indigenous land rights (African Commission on Human and Peoples’ Rights, 2009).
In the Nubian case, the collective connection to the land is also leading. The term ‘ancestral homeland’ is used to describe this. Furthermore, it is also taken into account that the Nubians cannot return to their original homeland, Sudan. This is connected to the way in which Nubians were and are treated by the British and Kenyan government. The need for collective land rights is not only a protection of lifestyle, but also a protection of life in itself. Development of the piece of land has never been in favor of the Nubians, there are even evictions taking place. The complainant claims these evictions are illegal, but the ancestral connection Nubians have with this land has never been recognized (African Commission on Human and Peoples’ Rights, 2015).
The decisions in both cases show the stance of the Commission on land. In the Endorois case the Commission decided the following:
“Taking all the submissions of both parties, the African Commission agrees with
the Complainants that the Property of the Endorois people has been severely encroached upon and continues to be so encroached upon. The encroachment is not proportionate to any public need and is not in accordance with national and international law. Accordingly, the African Commission finds for the Complainants that the Endorois as a distinct people have suffered a violation of Article 14 of the Charter” (African Commission on Human and Peoples’ Rights,
2009).
Furthermore, there is an emphasis on colonial times, were the Endorois did have a right to the land and now they do not. A case (Saramaka v Suriname) before the IACtHR is used to
underscore the issue of the need for communal land rights for indigenous peoples. The ACHPR states that there are multiple examples of human rights cases were this need is underscored (African Commission on Human and Peoples’ Rights, 2009). This all sounds very promising, however, it does not show the real impact of this case. The decision is not binding and has not had any real impact for the Endorois. There was an attempt to set things straight, but no real progress was made (Home & Kabata, 2018, pp. 7-10).
Looking at the decision in the Nubian case in context to article 14, the colonial past is also considered. Nubians were undisputed residents of Kibera (after repatriation failed) during colonial times, however, the Kenyan government states them as squatters of government land. Also, in this case the ACHPR decides there is an encroachment of property rights (African Commission on Human and Peoples’ Rights, 2015). So, the community did get land rights on a communal basis. It is not clear whether this was accomplished through the decision by the ACHPR, it could also be that the land rights were given as an electoral tactic (Home & Kabata, 2018, pp. 11-13). However, Elfversson & Höglund (2018) still describe limited access to decision-making over Kibera. So, it is questionable if the situation has changed.
Furthermore, in both the Endorois case as in the Nubian case, evictions next to unacceptable treatment by the government were considered very problematic and an encroachment on human rights in general. More importantly, marginalization and unjust treatment of group by the Kenyan government are in both cases of importance and used as a basis to grant rights. In these cases, it is not necessary in order to get land rights, to be categorized as a certain group. The decisions are made upon looking at the marginalization, connection to land (ancestral land), history of colonial treatment, colonial land rights of these groups and the way the Kenyan government is treating them (African Commission on Human and Peoples’ Rights, 2009; African Commission on Human and Peoples’ Rights, 2015). This is interesting, as indigenous but also ancestral land is nowhere to be found within the African Charter itself.
Ancestral land seems to be highly significant to the ACHPR. Ancestral does not mean a connection to land that has existed for over thousands of years. It could also mean over about one hundred years, as the term is also used in the case of the Nubians. Ancestral here is all about the connection the group has with the land, it is the connection that matters more than the time-period. This is promising for in-between categories as the Nubians, as it provides land rights on a communal basis.
Conclusion
Group rights can be essential for the protection of culture and human rights, the current categorization of groups seems to only provide group rights for indigenous peoples. However, as shown, there are more groups in need of group rights. Like the Nubians, who are in-between the categories of minority and indigenous peoples. Furthermore, the diversity of indigenous groups is not suited by the current international definitions, as indigeneity is different in Africa and Asia. It is therefore not surprising to see a different definition of indigeneity within a regional African organization like the African Commission on Human and Peoples’ Rights. While this definition is even vaguer, it is easier for groups to claim their group rights.
Problematic is that the ACHPR does not have any hard power, states do not have to act upon their recommendations. Therefore, the human rights situation of indigenous groups, minorities and everyone in-between still is precarious in Africa. Vagueness prevents states from knowing their obligations and it is hard to prevent human rights abuses. Furthermore, vague categories do not help indigenous groups in their struggle, but at the same time vagueness creates opportunities for other groups. Groups that are also in need of group rights, like the Nubians.
Trying to fit a strict category is hard and therefore it is positive the ACHPR chose a more inclusive definition. However, it should not matter what kind of group you are, it should matter what rights you need and how you are treated. The definition of the UN is vague, not
adaptable to every region and hard to use. Therefore, it is unclear which purpose it serves. The definitions show different and diverse aspects to take into account, which makes it harder to assess which characteristics a group should have in order to get rights. There is no consensus, neither academically nor politically over these characteristics.
Furthermore, as there is no way to make states honor indigenous and minority rights, it is important to give some clarity on who deserves group rights. However, not by trying to make the categories stricter, but making them clearer and more inclusive. This might not be achieved through one worldwide definition, as it is clear indigenous groups and minority groups appear in many different and unique forms. In the words of Niezen (2003): “The question of definition
thus has the inherent effect of pitting analysis against identity; there will inevitably be a group, seeing itself as indigenous, that is excluded from the scholarly definition, its pride assaulted, its honor tarnished, and, more to the point, its access to redress obstructed” (Niezen, 2003, p.
19). As the African Union tries to move towards a system in which it is possible to force states to honor group rights (with a court), this might be a lot more difficult when it is unclear who deserves which rights.
Although it is somewhat unclear if the indigenous identity is more beneficial, interestingly, the Nubians try to prove their indigenous status as they feel it could grant them land rights. Even though the African Charter does not talk about indigeneity. This shows the impact of the international indigeneity discourse and the impact of international categorization.
This study only looked into the African context and especially Kenya, it would be interesting to look into other cases of in-between groups. To see if the situation is different per region. One of these groups might be the Moluccans in the Netherlands, they experienced involuntary migration and probably cannot return to their motherland. They often live in small communities and have their own distinct culture. Their situation shows some similarities to the situation of the Nubians (de Weert & van den Born, 2019).
Furthermore, the focus of this study is categorization and group rights. A study with a different focus could find different results. Also, the in-between, indigenous and minority groups have more problems than land rights disputes. A focus on one of the other problems they face, could also have a different outcome. One of these factors this study did not take into account is domestic politics on indigeneity, which can also have a big influence on the situation of groups. It is known that in Kenya identity politics has a big influence on the position of groups (Lynch, 2006; Ndegwa, 1997).
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